‘Cheating and abusive’ husband denied R15,000 spousal maintenance during divorce settlement

A ‘cheating and abusive’ husband who sought R15,000 monthly maintenance from his wife failed to convince the North Gauteng High Court in Pretoria that he needed the funds.

The former couple got married in community of property in July 1999 and two children were born from the marriage.

The wife brought a divorce application in the high court and also sought for the husband to forfeit her pension fund, as well as properties and cars which were part of the joint estate.

However, when the matter was heard in court, an attorney informed the court that most of the issues had been settled and the only thing that remained to be contested was the forfeiture of the pension benefits.

In her oral evidence, the wife testified that the husband would be unduly benefiting if the forfeiture order is not granted.

Her argument was that, in 2006, the husband assaulted her to a point where she sustained serious injuries to her right hand which is now partially paralysed.

She said that due to the incident, she can no longer cook pap, as a screw that has been inserted in her hand attracts electricity.

The husband pleaded guilty of this assault and was sentenced.

In addition to the physical abuse, she said she also suffered financial and verbal abuse from her husband.

She also mentioned that when the husband resigned from his job as a teacher, he failed to share proceeds of his pension pay out.

Furthermore, he had an extra marital relationship with another woman during the duration of their marriage.

She added that her husband was not entitled to share in her pension benefits, nor was he entitled to be maintained by her, because she has been left paralysed and will need to employ someone to assist her.

She stated the husband was capable of taking care of himself, adding that he can use his bakkie to generate income.

During cross examination, she conceded that she never reported any of the abuse that happened after the 2006 assault.

When asked about the proceeds of their property in Savannah, she said she received R430,000 and used it to pay household debts and also settled the children’s school fees which was in arrears.

In his defence, the husband testified that when he received his pension pay out, he used majority of the money to build a house for his children on the stand owned by the wife’s parents.

He said he is now involved with a non-governmental organisation and earns a monthly income of R4,000.

He argued that due to the lifestyle he enjoyed during the marriage, he could not live on R4,000, and he needed his wife to pay him R15,000 to maintain the standard of living to which he was accustomed.

Regarding their property in Savannah, he also testified that the proceeds from the sale of the property was used to pay school fees and to settle household debts.

Judge Elizabeth Kubushi, who presided over the matter, said the grounds raised by the wife in support of her claim for forfeiture only serve as grounds for the irretrievable breakdown of the marriage, but they are not substantial misconduct for the purpose of forfeiture.

“The allegations of the extra marital relationship by the defendant alleged in the particulars of claim are not proven and she was unable to show the allegations of assault and abuse that was proven, amounts to substantial misconduct,“ said judge Kubushi.

Addressing the husband’s spousal maintenance claim, the judge said it was common course that the wife earned more money than the husband, however, there was no evidence on record indicating how much she earned on a monthly basis or whether she will afford to pay the sought amount.

“The defendant (husband) seeks to maintain the lifestyle enjoyed by both parties during the marriage, yet, he proffered no evidence to proof the type of lifestyle they enjoyed during their marriage. Nor did the defendant tender evidence to prove his financial needs and obligations on a monthly basis in order to justify his claim for R15,000.”

Judge Kubushi said since the parties were married in community of property, the joint estate should be divided equally between them.

“The pension money should be divided equally between the parties. The defendant's claim for spousal maintenance ought to be dismissed as he has failed to establish same in his evidence,” said the judge.

brenda.masilela@iol.co.za

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